Newman v. Hartley et al

Filing 15

ORDER Dismissing Plaintiff's Action with Prejudice for Failure to State a Claim, signed by Magistrate Judge Michael J. Seng on 6/28/12. Dismissal is Subject to 28 USC 1915(g). CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TYRONE D. NEWMAN,

CASE NO.

1:11-cv-1177-MJS (PC)

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ORDER DISMISSING PLAINTIFF’S ACTION
WITH PREJUDICE FOR FAILURE TO
STATE A CLAIM

Plaintiff,

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v.

(ECF NO. 13)

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CLERK TO CLOSE FILE
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JAMES H. HARTLEY, et. al.,
DISMISSAL IS SUBJECT TO 28 U.S.C. §
1915(g)

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Defendants.
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Plaintiff Tyrone D. Newman (“Plaintiff”) is a former state prisoner proceeding pro se

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in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff consented to Magistrate

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Judge jurisdiction. (ECF No. 4.)

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Plaintiff initiated this action on July 18, 2011. (ECF No. 1.) No other parties have

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appeared. The Court screened Plaintiff’s original Complaint, and dismissed it with leave

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to amend for failure to state a claim. (ECF No. 10.) Plaintiff filed an amended complaint

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on May 23, 2012. (ECF No. 13.) The Court finds that Plaintiff again fails to state a

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cognizable claim.

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I.

SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, ____ U.S. ____, ____, 129

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S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is

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plausible on its face.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555).

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Facial plausibility demands more than the mere possibility that a defendant committed

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misconduct and, while factual allegations are accepted as true, legal conclusions are not.

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Id. at 1949-50.

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II.

PLAINTIFF’S CLAIMS

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Plaintiff was formerly incarcerated at Avenal State Prison (“ASP”) where all of the

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events at issue in the Complaint occurred. Plaintiff has since been released. Plaintiff

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alleges that the following individuals violated his First Amendment rights: 1) James A.

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Hartley, warden of ASP, 2) D’Artni, Second Watch Correctional Officer at ASP, and 3) P.

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Martin, Second Watch Correctional Officer at ASP.

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The allegations of Plaintiff’s Amended Complaint are nearly identical to his original
Complaint. He alleges:

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On July 12, 2011, Defendant Martin called Plaintiff to the podium and presented him

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with a CDCR 128-B chrono dated July 11, 2011, regarding a previous conversation

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Defendant Martin and Plaintiff had had about the opening of Plaintiff’s mail. (Am. Compl.

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at 4.) Defendant D’ Artni said “that sounds like a threat to me.” (Id. at 5.) Plaintiff
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interpreted this statement to mean that Defendant D’Artni was threatening him with a false

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charge for threatening a correctional officer. (Id.) Plaintiff had seen these Defendants

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assault other inmates, and he became concerned for his safety. (Id.) Plaintiff filed three

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CDCR 22 informal chronos to inform Defendant Hartely of the incident at the podium. (Id.

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at 6.) As a result of Plaintiff’s fears, Plaintiff did not file any 602 inmate grievances for the

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opening of his legal mail from this Court. (Am. Compl. at 5.) One of the individuals who

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opened Plaintiff’s mail was a friend of Defendants Martin and D’Artni. (Id.)

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Plaintiff seeks compensation for emotional pain and suffering, punitive damages,
court costs and legal fees.
III.

ANALYSIS

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Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges,

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or immunities secured by the Constitution and laws’ of the United States.” Wilder v.

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Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983

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is not itself a source of substantive rights, but merely provides a method for vindicating

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federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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To state a claim under section 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and

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(2) that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,

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1245 (9th Cir.1987).

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Plaintiff claims that Defendants Hartley, D’Artni, and Martin retaliated against him

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for pursuing constitutional rights. Defendant Martin filed a chrono against him because he

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asked for grievance forms.

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Defendant Martin’s actions were meant as a threat. Defendant Hartley was informed about

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these incidents.

Defendant D’Artni made a comment that implied that

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“Within the prison context, a viable claim of First Amendment retaliation entails five

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basic elements: (1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled
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the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

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Cir. 2005).

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Plaintiff has not described any action taken against him that could be considered

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“adverse”. As the Court informed Plaintiff previously, Defendant Martin’s chrono against

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Plaintiff apparently reflected only that Plaintiff had asked for grievance forms and

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Defendant Martin gave them to him. Neither that nor anything Defendants D’Artni and

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Hartley reportedly did in response to it constitute adverse actions.

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The second element of a prisoner retaliation claim focuses on causation and motive.

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See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his

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protected conduct was a “‘substantial’ or ‘motivating’ factor behind the defendant’s

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conduct.” Id. (quoting Sorrano’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.

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1989). Although it can be difficult to establish the motive or intent of the defendant, a

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plaintiff may rely on circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir.

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2003) (finding that a prisoner established a triable issue of fact regarding prison officials’

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retaliatory motives by raising issues of suspect timing, evidence, and statements); Hines

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v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 808 (9th

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Cir. 1995) (“timing can properly be considered as circumstantial evidence of retaliatory

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intent”). As the Court said before, circumstances suggest that Defendants took their

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actions in response to Plaintiff’s pursuit of protected conduct. Those circumstances are

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sufficient to satisfy this second prerequisite of a retaliation claim.

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Filing a grievance is protected action under the First Amendment. Valandingham

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v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). Pursuing a civil rights legal action is

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also protected under the First Amendment. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.

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1985). Plaintiff has alleged that he was engaged in conduct that was protected under the

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First Amendment. He was attempting to obtain grievance forms that would allow him to

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complain about interference with his mail by prison officials. This constitutes protected

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conduct under the First Amendment for retaliation purposes. Plaintiff has alleged sufficient

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facts to satisfy this third prong.

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With respect to the fourth prong, “[it] would be unjust to allow a defendant to escape

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liability for a First Amendment violation merely because an unusually determined plaintiff

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persists in his protected activity....” Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d

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1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official’s acts

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would chill or silence a person of ordinary firmness from future First Amendment activities.

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Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300). Although

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Plaintiff again repeatedly alleges that he was “chilled”, the alleged retaliatory action was

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so innocuous it could not plausibly be said to chill a person of ordinary firmness from

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exercising First Amendment activities. It does not satisfy the fourth prerequisite.

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With respect to the fifth prong, a prisoner must affirmatively allege that “‘the prison

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authorities’ retaliatory action did not advance legitimate goals of the correctional institution

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or was not tailored narrowly enough to achieve such goals.” Rizzo, 778 F.2d at 532.

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Though this is not a high burden, see id. (prisoner’s allegations that search was arbitrary

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and capricious sufficient to satisfy this inquiry), Plaintiff has not alleged facts to enable the

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Court to conclude that Defendants had no legitimate penological motivation for their

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actions. One Defendant issued him a chrono and two Defendants failed to properly

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respond to it.

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circumstances to enable the Court to examine them for facts supporting this fifth element,

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but he failed to do so. There appearing to have been a valid reason for the chrono and

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Plaintiff failing to provide further information, he has failed to satisfy this prong.

Plaintiff was told to provide more details regarding the surrounding

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Because Plaintiff has failed to allege sufficient facts to satisfy all five prongs of his

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retaliation claim, the Court finds that he has failed to state a claim upon which relief could

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be granted. Inasmuch as he previously was advised of the deficiencies in his pleading and

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given an opportunity to correct them, it is reasonable to conclude they are not correctable.

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Thus, no useful purpose would be served by giving him yet another opportunity to amend

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this claim.

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IV.

CONCLUSION AND ORDER

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In conclusion, Plaintiff’s amended complaint fails to state any claims under the First

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Amendment for retaliation. Plaintiff was previously given notice of the deficiencies and an

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opportunity to amend, and further leave to amend is not warranted. Lopez, 203 F.3d at

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1130; Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Based on the foregoing, it is HEREBY ORDERED that:

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This action is DISMISSED, with prejudice, for failure to state any claims
under section 1983; and

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2.

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This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C.
§ 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011).

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IT IS SO ORDERED.

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Dated:
ci4d6

June 28, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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